McGirk,
Judge, delivered the opinion of the court.
At the April term of the circuit court for the'county of Ste. Genevieve, Bower was indicted by the grarid’jury of that county for the murder of "one George-Thompson. The trial was had at the said -tei-nr; the defendant pleaded not guilty, and a jury found him guilty'bii'both counts •in the indictment; both are alike, except one is in the common law form; the other is in the'common law form, but contains, also, certain words in a late statute regarding the crime of murder. The prisoner, by Messrs. Cole, Zeigler and Rezier, of'counsel, moved in arrest of judgment and for a new trial, which were overruled, and the court gave judgment of death on the prisoner, to be executed on the 9 th day of June ensuing. The prisoner has brought the case here by appeal. Something is said in the-record about wrong instructions, but that matter has not been showed at tíre bar,'nor does the record show any thing.about that matter.
The only ..question 'for the consideration of-the Court-is, whether or ;n'bt the circuit court" erred in refusing a' new trial? The question has nbt been argued on theMotion to arrest the judgment, nor cán I perceiveany reason why any notice should be taken of it.
The reasons for a new trial are, that the'-verdict is againt law and evidence, that it is against theAveight of ■evidence. Ihe evidence on the part of the'State-was in ■substance as follows: That on the last'day of January, 1838, the prisoner and one Thompson, or rather, (to •use the words of the witness,)--that the prisoner arid a young man staid at the house of witness, Mrs. Roussiere, all night, took supper and breakfast, and left her house ■after breakfast for Ste. Genevieve. -The witness lives [374]*374about five miles on the road from Ste. Genevieve to St. Louis; both had blue roundabouts; prisoner had on black pantaloons; does not recollect the color of the pantaloons of the other person; prisoner had on a white hat with a black ribbon round it; the other man had on an old fur cap; when they left her house in the morning, prisoner picked up or had a large stick in his hand. The hat’produced in court, witness says, is the hat prisoner had on' at ^er house. The witness identifies the cap-brought in court which the other person had on when at her house; describes the buttons of the coat of the other person as being yellow in the middle, and black round the rim, and says those shown in court are the same. These persons came to her house after dark; had but little to say; prisoner never spoke tp the other man that evening; is a German,and speaks but little English; both-slept in the same bed; next mormpg the prisoner spoke of his sore toes; that the two appeared friendly in the morning; the prisoner paid fifty cents for his bill, said it was all the money he had, and the deceased said to prisoner,, “John, we have to pay the woman 74 cents for our lodg-; ing and eating,” which was paid. The deceased' was- a young man, had no beard, pale complexion, about 18 or 17 years of age, his hair was a.little redish. The witness saw a corpse eight days thereafter, which had hair of the same color as the person at her house, and'did not recognise him by any thing else, Louis Roussiere,a boy, and son of the last witness, says prisoner and a young man, an American, came to his mother’s, herein as stated above, and next morning when they went away, saw the prisoner have a stick. Saw a eorpse eight days alter; that the corpse he saw had hair the same color as the prisoner’s companion; that he knew the corpse by nothing bat the color of the hair; describes the buttons as described by his mother; that the men came to his mother’s in the night, and left next morning after breakfast.
Felix Dufour says, on the morning of the first of February, he went from Ste. Genevieve with hi’s cart for wood on the road leading from Ste. Genevieve to Potosi, and toward St. Louis; he met two men going on foot towards Ste. Genevieve, near the forks of said road, and about two miles from Ste. Genevieve; the witness went and got his wood, and was gone from that place one hour and a half, and about two hundred yards from the place where he met the men, he saw where something had been dragged across the road, and thought it was a deer;that he followed the trail about fifteen or twenty steps [375]*375beyond the road, and found the dead body of a mail iri ri gully, stripped of all his. clothes, except socks and shirt; the day was cold, but the blood Was no't frozen; 'thinks the hat and cap in court are the same the stranger had on; the stick of ash shown in court is the same he saw by the dead body; thé hát shown in court the same he found by the dead body; says' he did no't recognise the dead body.
Henry Morris says, that on the morfiirig of the first of February, he met two strangers on the road, near the place, or about two hundred yards from' the place where he found the dead body, one man á little stouter than the other; the largest man was walking behind thé other with a stick Under hiS arm; that he came back with Du* four and saw a trail across the road, supposed it was made by dragging a deer across the ro'ad; followed Du-four and found a dead body of a white or palé complexion; the same was naked, except socks and shirt, and was covered with leaves; the breast was blue from strokes, and the skull was mashed in; and that th'é body was about two hundred yards from the place where he met the two men; that he did not recognise the dead body, and that he does not recognise the prisoner. It appears that the place where the dead body was found, is near or about two rtliles from Ste. Genevieve, ori the Potosi and St.Louis road,near the forks; and that MadameRoussie're lives on the St. Louis road; about three' rfiiles farther towards St. Louis.
Louis RoUS'siere swear’s he we'nt otft to cut wood ó'U the road, the other witnesses speak of, on first February, and saw no person iri the road; came back with them, saw a small dead man iri the gully ne'ar the road.
Pierre Labourin' says he lives eight miles from Sté. Genevieve, on the St. Louis road; that on the same day the man was found dead iri thé' gully, thé prisoner came to his ho.use about twelve o'r one o’clock, and took dinner, and said he was going to Dr. Eluke’s; started towards Kluke’s; had on a little cap and blue roundabout; said he was a blacksmith; the cap iri court looks like the cap prisoner had on at his house, if not the same; the mail’s pantaloons were black and torri; the man Was lame.
John Drury, a witness, says that on the same day the man was fourid dead, thé prisoner came to his' house' about sundown', was walking and was lame, arid ate supper, and left his house' it! about half ari hour, went towards Klufce’s, and the next mornifig saw same rrfan coming towards town.
[376]*376Jas. Capon says, that on Tuesday^late in the evening, he saw ^ie prisoner one half mile from Dr. Kluke’s; he asked the way to Ste. Genevieve; was in company with a small spare made man, light hair; both had blue roundabout.s on; the prisoner had on a white hat, and black ribbon on it; the small man-had light hair, and an old fur cap; the witness identifies the hat.
Dr. Kluke says, on the first day of February, the prisoner came to his house after sundown, staid all night, had a sore toe, appeared lame, was distressed and scared, witness thought from pain and lameness, and the prisoner looked as if something was wrong, and did not sleep that night; told the witness he was lost all day; ate breakfast, and started back towards Ste; Genevieve; the witness identifies the cap in court to be the same the prisoner had on at his house.
Austin Follert says, that on Tuesday, the second of February, at two o’clock, the prisoner came to his house; ■ that he lives six miles from Ste. Genevieve, and seven from Dr. Kluke’s, and one mile from the Potosí road; the prisoner staid there half an hour, and he did not speak to him at all.
Joseph Rein saw the prisoner at Follert’s at .2 o’clock; the prisoner told'him he came from’. St. Louis; told the witness he staid in the woods all night and was lost, and started for Ste. Genevieve.
Martin Zokest says, about 2 o’clock on the second day of Februaiy, the prisoner came to his house, said his name was John Bower, said he came from St. Louis and was going in the country; the prisoner remained at his house eight days; when he was arrested for murder by the sheriff of Ste. Genevieve county.
Louis YanVoert says he had a conversation with the prisoner in jail. The prisoner said he came from St. Louis in company with two men, and that they pursued their road together as far as Herculaneum; and that the person with him, the deceased, took another road-from the other person, and that they were to meet again at a cross road near Ste. Genevieve, about two miles from town; that the prisoner described the road or place of meeting to witness, and said he knew it because he had travelled that road before; that when the prisoner and the deceased got to the road or place of meeting, they stopped a short time and saw their companion coming down the' road; that after a little conversation, they commenced quarreling; that after the deceased and the other man had quarrelled a little while, they began to [377]*377• scuffle and fight; the other man took the club the prisoner had in his hand, and knocked the deceased down; and after the other man had knocked the deceased down, this third man (whose name was called Forbes by the prisoner) gave the prisoner the club, and told him if he did not strike the deceased, he would knock lima down, and being thus forced into matters by threats, he then struck the deceased twice with the club. The bodyof Thompson, the deceased man, was then dragged" into a gully. The witness then says, two or three days after he had the above conversation with the: prisoner, the prisoner again told him the same story, with this difference, that he had struck the deceased with a cane and not with the club; and-that the Englishman,-Forbes, (as he called him,) told him that if he would knock Thompson, they would go to N. Orleans together. The prisoner said he did not kill-.-Thompson, that he only gave -him tivo blows.
Sebastian Ziegler says, a "few days after the prisoner had been in jail, the prisoner sent the sheriff tó him to go and see him; he'did so, in company with the sheriff; when he went, he-found the prisoner crying; then th prisoner told him that some person through the grates told him he was to be hung to-morrow; and lhat he whs in a bad fix, and'wished he had not been with them men; and said there were three in company, to wit: John Bower, (himself,)'George Thompson, (the deceased,) and Thomas Forbes; and that five of them had broken jail ai St. Louis; -that the three mentioned had travelled together as far as 'Herculaneum; that Forbes then took the big road, and he and Thompson came to Fight’s shot tower, and then continued on down, when, after being separated two - pights, the third morning they all came together again. The prisoner and Thompson came to the forks -of the road, stopped about 10 or 15 minutes, looked- up; 'the •big road, and saw Forbes coming. .The prisoner-thep said, “if he only could live a little longer to sgve-his 'soul, •if he could not save his life.” Then the -prisoner com fe?sed that they had killed the man; and-said-he was very sorry he was along; and said after they-left -Madame Roussiere’s, they stopped atkhe forks of tfie rpad, and that Forhes pame down the -road, and- so they came together; the quarrel again commenced, having-quarreled before, which was the cause they parted; that-3.-hom.p-! son and Forbes had quarrelled-in the StLLouis.-jai),- where F.orbes drew a knife on'Thompson; and that after a little, quarrelling at the .forks of the road. Forbes-took the stick [378]*378out Of prisoner’s hand, and knocked Thompson downy 'when the deceased jumped Up and1 knocked the prisoner on the head,-and cut the crown of his hat; then the prisoner took the small stick and gave the deceased1 two blows on the backhand no more; while prisoner was doing this, Forbes continued to strike Thompson till he was dead, and jumped on his breast with his heels after he was dead;- that Forbes then took and dragged Thompson into the gull’y in the woods, and he went along with him; and while there,-Forbes told prisoner they must change clothes, and they began to strip Thompson, he having the best pantaloons; Forbes tided to put'on Thompson’s pantaloons, but could not, he being a much larger man than" Thompson; then the prisoner and Forbes changed pantaloons to keep from being known; Forbes then said he would take (he road to Perryville, and he should take another, but he being lame could not travel far or fast; the prisoner told witness he wished Forbes might be caught, and said he could not be far off,as it was such cold weather; then prisoner gave a particular description of Forbes, which was minute;' then a'sked witness if he would be hung', to which the witness' replied, he must be tried first' by a- jury. The witness had several conversations with the prisoner, and the prisoner always told the same'tale .as to the'facts; asked him for prayer and religious books, and cried a gfe'at deal.
Doctor Shaw, a witness, says he saw the dead rhati- in the gully; helped to take him out; his skull- was broken,also cut in the forehead, and the breast Very mú'ch bruised.This was all' the' evidence' given for the State,-anti the prisoner gaVe' none.
It is contended1 by the prisoner’s counsel, that thé’eVi-dence' is insufficient to sustain the verdict agaitist the prisoner'as to murder in the first degree. They, however, do not insist that there should have" been a verdiet of acquittal entirely, but th'at the- confession made By. the prisoner establishes the guilt in the second degree of murder only;' and they insist that the jury l-nust have erred in giving due weight to" that part of the prisoner’s confession which goes to' Show the prisoner was compelled to take part in the transaction'by threats of Forbes. In order to show what' was the duty of the jtiry regarding this confession, they have cited several authors, which,-if necessary,- \yill be noticed hereafter. The indictment is founded on the first sebtibn of the second article of the statute respecting crimeS-^Revised Code, 187, and enacts that “ every murder which shall be committed by [379]*379means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or Which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary, or other felony, shall be deemed murder in the first degree.” The second section says, “all other kinds of murder at common law, not herein declared to be manslaughter, op justifiable or excusable homicide, shall be deemed murder in the second degree.” The third section declares that “persons convicted of murder in the first degree', shall suffer death; and those convicted of murder in the-second degree,- shall- be imprisoned in the penitentiary.”
W1?at constitutes' killing” within the mean - 0lirstal‘
The first section places all' those murders which ate done by means of poison or by lying in wait, in the first rank of the catalogue;; it then declares that all other murders, where- the killing is wilful, deliberate, and' premeditated, shall also stand-' in the first degree. These words furnish a general description of murders which are to be known by the description; and all those' which answer the description are, when- known- by the description, to be placed in'the first degree; as well as those embraced in the particular description. All those contained in the particular description, we know are net intended to be in the general description. These are the following: 1. Those committed by means of poison. 2. Those ■committed by lying in wait. 3. Those committed in the perpetration or attempt to commit arson. 4. Those committed in the perpetration or attempt to commit rape. 5. Those committed in the perpetration or attempt to- commit robbery. &. Those committed in the perpetration or attempt' to perpetrate burglary. 7. Those committed in the'perpetration or attempt to commit any other felony. Then the special cases end1 with a general description- of other felony as to the attempt or perpetration of crimes. I understand, that not only the six cases specially given are iil the first degree, but that all the cases which occur or can be found, when the murderer is perpetrating or attempting to commi’ any manner' of felony, are also in the first degree. There is no evidence in the case at’ bar that Bower’s case comes within any of the specially enumerated cases.
To place his case, then; in the first degree, the murder must have been wilful, deliberate and premeditated. three of these things must concur,.if, indeed; they do sti-tute three distinct ingredients. JBut I do not perceive how it can beso. I understand deliberate and dilated are in< t-his-case about the same' thing. Lwiil, [380]*380therefore, drop one of these'Words,’and use the other as being sufficient,. • The' statute says, the killing must be wilful; by this"!’'think the act means the murderer intended to kill. ‘ This supposes an-actual condition of the mind in regard'to the-killing1 when the deed takes place. The other párt of the'description requires that the killing must have been thought of before the act of killing began to take place.
The legislature, therefore, say the killing must be premeditated. -I therefore -understand the description of murder, required to place it in the first degree, to be this: '^fchat there-must'be a killing with an intent to kill and ■ do-the-deed 'at the time the fact took place; and also that •before the-act took place, the murderer intended to do the deed.” 'Before I compare the prisoner’s case with the statute as above understood, I will remark that, as regards the cases put by the statute in the second degree of murder, they are all those which are not contained in 'the first-section, and all of those not otherwise provided '.for by -the act, I at first, when the argument began, thought there was nothing on which the statute (second -section) could act. But I now think that there may be several classes of murder on which it can act. I will -not now inquire whether the statute has placed all those murders, not in the first degree, on the footing of man- • slaughter, justifiable and excusable homicide, but will simply say, that there are several murders at common law, which do not come under the general description of. the first degree. The first case is, where the unnatural mother exposed a child in an orchard, which was in consequence destroyed by a kite. The next is., where the overseers of the poor neglected and refused to furnish food for a beggar, and he died. The third is, where a son wantonly exposed, his sick father to the weather, so that he died. At common law, all these cases would be murder —see 4 Blk. Com. p. 197, Now, in’all these cases, there is no supposition that the party exactly intended to commit the act of killing, -yet because the consequence was death, the. party was holden to be a murderer. These cases, therefore, and the!like cases, are in my opinion, the cas.es which are within the second degree.
I will pro.oeed to examine the 'case at bar, on the evidence, to see if the jury erréd; in finding the prisoner guilty-'of murder in-the first degree.
In the first place, it is to be remembered, there must have been a mqrder. -T do not doubt at all that, independent'-of the confession, the.;proof is -entirely-satisfactory [381]*381that a murder was committed on the bo.dy. of Thompson; and that that murder was oí a wilful and deliberate character, sufficient to rank it in the. first degree. The proof is,that on the night preceding the homicide, the prisoner and the deceased staid all night three miles from,the spot where the homicide occurred; that though they appeared friendly while there, yet the prisoner (says the witness, Mrs. Iloussiere,) tqqk with him in his hand.a big stick; they wert- both walking; the prisoner was lame,, and complained of his lameness while there. Now one might suppose the stick spoken of was intended to be used as a staff, but the witness says the stick was big; presently the prisoner and the deceased were met by a witness, who found them walking, Thompson beforej the prisoner behind, with his stick under his arm. This took place near the scene of the murder. The fret that the prisoner did not use the stick as a walking stick, and that .he had it under his arm, does strongly indicate that the stick was not. taken at first to be used as a walking' stick. Another witness says he saw the parties within . two hundred yards of the spot where the dead body was found. The witnesses, as they came back .with wood, found a trail across the road; followed the trail across the road, and in about twenty yards from .the road, found a dead man in a gully, stripped of all his clothes, except socks and shirt; they also saw the dead man ,had been beaten with a club, his skull mashed m, his breast bruised, and the hat of the prisoner and the club, which Boyyer was seen with just before, lying near the dead man; the cap and other clothes of .Thompson were gone, and af-terwards the cap of Thompson, the first time Bower was seen, was on his head,, which was the same;,day about twelve or one o’clock; the prisoner then, was-found pursuing the back road which he had .come, and at night was found at Dr. Eluke’s;12 or l.A.miles from the scene of. the homicide;- there he appeared alarm,ed and:-scared, and slept none; pretended he had been lost,.yet, in two instances that day, he had means; of inquiripgi.the road to Kluke’s.and. did so inquire; he then was, the.next day, found at the. distance of J miles.from Kluke’s-at night; said he had .been lost and-lay out the night, before; he might have been lost that day, but that he-lay out the night before, we, see by the testimony of Kluke,.was en-' tirely false; eightpr ten days thereafter he. was arrested. Here we’.find-a man has been killed, and .the question is, who did the deed? -Can any thing be rpore clearly proved who did it, than the-circumstances.in this case dp-[382]*382prove Bower did it? Yes, positive proof .might be more satisfactory. Yet, in my opinion, the jury risked nothing to consider the evidence sufficient. They might well suppose the stick carried by the prisoner from Madame Roussiere’s was taken with the intention to kill Thompson, as it was not used for any purpose of convenience. This same stick was seen also under his arm, when within two hundred yards of the scene of the murder, and it was also found at the spot where the body waá found. In the .ordinary course of things, who co.uld have done the deed with .this stick other than Bower? Then we find Bower’s hat there, the very hat seen on him two hours before wfthin two hundred yards of the spo.t. Then the cap of the dead man was that same day seen on Bower’s head. If Bower did not kill Thompson, how came the hat and stick there? . This cann.ot be accounted for on any principle .other than by supposing that Bower killed Thompson w-ith the stick, hid himj, left his hat, and took Thompson’s cap for .the purpose of disguise, and being so disguised, perhaps safe i,n his opinion, he took the back •trank. There are many other circumstanc.es to strengthen .this opinion, such as pretending to be lost and lying • out all night, his behavior .at Kluke’s, an,d the like. If the foregoing view of the .evidence proves Bower com-rhitted the murder, it does, in my mind, also prove that the murder is of th.e first d.egree. If Bower did the acc at all, the fact of the stick being carried three miles, and the evidence of bruises and the skull b.eing mashed in, proves wjlfulness and premeditation, so that the case .comes within the general description of those murders placed in the first degree. That th,e stick was used, the .appearance of the body, the skull beat in, the breast and head bruised, abundantly prove this; that the killing with this stick was premeditated before the killing took place, is proved by the fact where the prisoner got the stick, how he carried it, &c,
The legal rule, that a prisoner’s confessions are to .be taken altogether, does not mean that the jury should give the same degree of credence to every part. On the contrary, they may ' well disregard •such ports as are inconsistent with reason or other proof.
[382]*382But it is said, his confession being given in evidence, must be taken altogether. This is the law. But it is also the law, that the jury may give credit to one part of the confession, and tptelly disregard the balance. This is not a new arbitrary power, but must be governed by rational legal principles. One of those principles is, that if that part of the confession which goes for the prisoner is against the experience of mankind, then it is of no weight. If it be contradicted by other evidence stronger than itself, then it has no weight. If the whole confession is contradictory to itself, then it is of no weight. [383]*383If the facts proved by a witness are totally or partially .inconsistent with the whole transaction, or a material part thereof, then the same is of no value; and just so, if that part of the confession going for the prisoner is so, then its credit is nothing. If the statement of the prisoner is at diiferen.t times different, the value of the whole is lessened.
If we try the .confessions jn this case by these rules, his confessions will not help him out. The case the prisoner makes out by his confessions, first to Yap Yoert and then to Zeigler, is, that himself, the deceased, and one Forbes, broke the St, Louis jail; in company they tra-velled to Herculaneum; that Thompson and Forbes quar-relled, and for that reason parted; that Forbes took one road and they anoth,er; that it was understood and agreed they should meet again at the forks of the road, where the killing took place; that after being parted two nights, the third day in the morning, Bower and Thompson came to the spot, and in about 10 or minutes, Forbes came also. Jn the first place, this coincident meeting, though not impossible, is rather improbable. That as soon as Forbes came up, Thompson and himself began to quarrel, and a scuffle ensued betyyeen thprm Then Bower fella Nan Voert that Forbes took the club that he had ip. jfis hand, and therewith knocked Thompson down; and that after Forbes had done so, he (Forbes) gave the prisoner the club, and told him if he did not strike Thompson, that he would knock him (the prisoner) down, and being thus forced into matters by threats, he then struck the deceased twice with t'ae club. The prisoner again told tfie sam.e story, except that he said he struck the der ceased with a cane and not the club, and said he did not kill Thompson* In regard to this confession, it undertakes to put Bower in a condition qf necessity to strike Thompson twice.
It seems to me there is no truth ip the pretence. The prisoner gays Forbes took the club from him, knocked Thompson down, and then gave the club back to him, and then threatened to knock him down if he did not strike. In the first place, Forbes had no club when the fight began; if he had, why take Bower’s stick? Then he had none after he gave it back to Bower, and he was in no condition to knock Bower down; so that the pre-, tence of duress is all a preteiice, lor Bower would hardly have given the deceased two blows with the club for fear of Forbes, when Forbes was unarmed and he him[384]*384self was armed; I therefore conclude there is -no truth in this part of the inatte.r.
Edwards, Judge, dissented. An derin the fim must *?“v® been ¡tatedU’’ ¿o^and the evidence suffi-t0 convict, ^eh of these\n-to the crime; the bur-ofmalice falling on the State, and “ever (as in Eng-i0ThePIC" judge, after re-the evi-principles^cont eluded it’insufii-cienI *? warrant ingof tlie
[384]*384The next time the prisoner talked with "Van Yoert, he stated he struck the deceased with a cane. This puts the club back in the hands of Forbes, and docs away entjre-jy wj.(.p duress; but gives as inducement...to Bower to strike,Thompson, that if he would do-so, they would go, to New .Orleans- together. The .confession of the prisoner to.Zeigler is, that when-the quarrelling had advanced, Forbes took the stick put of his hands and knocked the deceased down with it; that .Thompson jumped up and knocked prisoner on the head* arid cut, the crown of his hat; then.the prisoner took a small stick and gave the deceased two blows on the back, and no more. This account of the; fight is an improvement on the former account, for. in..this the prisoner had a.good provocation to strike,thft. deceased, and in the former there was no su,ch thing, but duress at first and then a promise to travel .together. In this case the stick is never returned to Bower, but .while Bower was so striking Thompson, Forbes continued to beat him- till dead, then stomped the-dead man’s breast with his heels; then goes on the confession about changing clothes.
It seems to.-,me this confession cannq.t be a true-account ol, the matter;-, because, first, no such man as Forbes has been heard of. If such man had been found, that fact might have helped the prisoner some.
In the-second place, the account is not entitled to credit,; because, if Bower were innocent, and one Forbes had cqmmitted the murder, as stated,-when the two parted, it .Bower were really innocent, he would- have given information to-the first perspn be. could have found; he would, have went:.;to Ste.,,GeEevieve, only two miles off, which.he knew according to his statement, for he says he. had come the road before, and have, made the matter known,so thatForbes might be caught. But instead of this, he puts on a disguise, took the back track, told lies, and wandered about..-
I am well satisfied the jury did right to reject his confession entirely, and particularly that part which seeks to mitigate his crime. Judgment affirmed,
Judge Tompsons concurring.